Tag: intellectual property

A new tractor often costs hundreds of thousands of dollars, but one thing not included in that price is the right to repair it…

… you also need a software key — to fix the programs that make a tractor run properly. And farmers don’t get that key.

“You’re paying for the metal, but the electronic parts, technically you don’t own it. They do,” says Kyle Schwarting, who plants and harvests fields in southeast Nebraska.

Even a used combine like his Deere S670 can cost $200,000 or $300,000. As he lifts the side panel on this giant green harvester, he explains that the engine is basically off limits.

“Maybe a gasket or something you can fix, but everything else is computer controlled and so if it breaks down I’m really in a bad spot,” Schwarting says. He has to call the dealer.

Only dealerships have the software to make those parts work, and it costs hundreds of dollars just to get a service call. Schwarting worries about being broken down in a field, waiting for a dealer to show up with a software key. If he had that key, he could likely fix the machine himself.

Looking to history, it is important to appreciate that things have not always been as they are today. IP rights used to be considered ‘grants of privilege’ that were explicitly recognized as exceptions to the rules against monopolies.

For much of the twentieth century patents were perceived as ‘monopolies’ in American jurisprudence. Anti-trust (anti-monopoly) legislation checked the power of patent holders in important ways. The framing of intellectual property as being ‘pro-free trade’ would not have been persuasive during earlier eras in which IP protection was seen, at best, as a necessary evil and at odds with free trade. It is only recently that the courts have ceased referring to patents as monopolies, and that anti-trust legislation has been relaxed…

When and why did intellectual property catapult to the top tier of the United States’ trade agenda? Had the two issues [international trade and IP] always been linked? Had IP protection always been so revered? How has the United States treated domestic intellectual property rights? Why did ‘it’ decide to globalize its own perspective?

Back in the 90s, computers made it relatively easy for people to copy movies and music. So the recording industry teamed up with Washington to crack down on piracy. Among other things, the resulting law made it illegal to break digital locks—like passwords or encryptions—over copyrighted work, no matter the reason.

In the past 20 years, technology has changed drastically. The DMCA has not. That’s a problem, because copyright isn’t just movies and music anymore. It’s everything. Because everything is powered by computers … which is powered by programming … which is technically copyrighted. That means your tractor, your coffeemaker, and your self-cleaning cat litter pan have the same copyright protection as your DVD of Disney’s Sleeping Beauty.

… If companies put digital locks over our smart gadgets, then—under the DMCA—they’ll be the only ones who can fix that stuff. Worse, they can sue anyone who tries to break up their repair monopoly.

Over the years, lots of companies have abused the DMCA to squeeze out the competition. In the early aughts, cellphone companies wielded the DMCA to shut down programmers who developed unlocking software that moved cellphones to different carriers. Now, the same tactics are being used to shut down non-OEM repair options.

Local mechanics rely on diagnostic tools from companies like Snap-on and Autel to repair modern vehicles. But in 2014, Ford sued Autel for making a tool that diagnoses car trouble and tells you what part fixes it. Autel decrypted a list of Ford car parts, which wound up in their diagnostic tool. Ford claimed that the parts list was protected under copyright (even though data isn’t creative work)—and cracking the encryption violated the DMCA. The case is still making its way through the courts. But this much is clear: Ford didn’t like Autel’s competing tool, and they don’t mind wielding the DMCA to shut the company down.

While the terms of the Trans-Pacific Partnership (TPP) were kept secret from the public and policymakers during negotiations, US negotiators relied heavily on input from the corporate insiders who populate the US government-appointed Industry Trade Advisory Committees.

[Seed industry lobby group] BIO spent roughly $8 million on lobbying each year while the TPP was under negotiation, paying firms like Akin Gump Strauss Hauer & Feld $80,000 annually to lobby for patent provision in the Trans-Pacific Partnership trade negotiations.

The results of this lobbying blitz were unknown until the final text of the agreement was released in November of last year… Experts have called the TPP a ‘big win’ for the biotech seed industry, and many warn that the trade deal will further enrich seed companies at the expense of farmers’ rights.

[The Trans-Pacific Partnership] effectively outlaws the saving of seeds from one season to the next, a practice the majority of the world’s farmers rely upon. Farmers are prohibited from saving, replanting, and exchanging protected seed, and breeders* are granted exclusive right to germplasm**.

* In this context, “breeders” means large-scale corporations or other institutions that carry out plant breeding to develop new crop varieties. It excludes small-scale farmers, or local seed sellers or coops, who don’t have the money to pay for lawyers to register and apply for patents for their seeds, or the time, money and extra land that would be required to carry out the seed trials that would be required for the patent application to even be considered.

There’s nothing inherently wrong with all the computers in cars, and they allow for safety, convenience, and efficiency levels in our vehicles far beyond what we’ve been able to achieve before. But that doesn’t mean they can’t be repaired or tinkered with by the owner — it just takes a new set of skills and tools. It’s not like re-jetting a carburetor was something just anyone could do, anyway — this is really no different.

Well, it is different in one very important way: because so much of how modern cars work involves computers and software code, cars can now fall under the aegis of bills like the Digital Millennium Copyright Act, and automakers can use this act to try and restrict what an owner can do to the car that they bought.

Automakers are considering cars “mobile computing devices” and as such would fall under the DMCA’s pretty draconian protections.

The bottom line here is that, everything needed to repair and diagnose a car is already available to the aftermarket and any vehicle owner, including modifiers.

The real issue of concern here is that the sophisticated computers in vehicles are so intertwined that they shouldn’t (for security and safety and environmental reasons) be allowed to be tinkered with.

Seeds are the heritage of peoples; the two have evolved together and are not isolated entities floating in a social void. Seeds are not things, nor are they merchandise or computer programs. They cannot remain in circulation without the stewardship and care of peoples and communities. They are not a resource waiting to be grabbed by the first to come upon them. In other words, there is no such thing as seeds that are free in the abstract. They are free thanks to the peoples and communities who defend, maintain and care for them so that we can enjoy the goods they provide.

Ex situ conservation: Plants or their seeds are stored in laboratories or seed banks. In situ plant conservation is when plants are conserved in their natural setting, in farmer’s fields or in the wild.

Grow-outs: Seeds that are stored for too long will eventually lose their ability to sprout and grow, so for long-term storage you have to periodically plant out the seeds, grow up new plants, and collect new seeds to replace the old ones. With every grow-out cycle there is a risk some of the genetic material will be lost or contaminated.

CGIAR: An international agricultural research consortium which runs many of the world’s seed banks. It gets its money from various sources including charitable foundations (such as the Rockefeller Foundation and the Bill and Melinda Gates Foundation) and from the governments of various countries. It has ties to the World Bank and the FAO (the Food and Agriculture Organisation of the United Nations) but is not actually part of any inter-governmental institution.

The “Global Seed Vault” was officially opened today on an island in Svalbard, Norway. Nestled inside a mountain, the Vault is basically a giant icebox able to hold 4.5 million seed samples in cold storage for humanity’s future needs. The idea is that if some major disaster hits world agriculture, such as fallout from a nuclear war, countries could turn to the Vault to pull out seeds to restart food production.

While it’s true that crop diversity needs to be rescued and protected, as irreplaceable diversity is being lost at an alarming scale, relying solely on burying seeds in freezers is no answer. The world currently has 1,500 ex situ genebanks that are failing to save and preserve crop diversity. Thousands of accessions have died in storage, as many have been rendered useless for lack of basic information about the seeds, and countless others have lost their unique characteristics or have been genetically contaminated during periodic grow-outs. This has happened throughout the ex situ system, not just in genebanks of developing countries. So the issue is not about being for or against genebanks, it is about the sole reliance on one conservation strategy that, in itself, has a lot of inherent problems.

The deeper problem with the single focus on ex situ seed storage is that it takes seeds of unique plant varieties away from the farmers and communities who originally created, selected, protected and shared those seeds and makes them inaccessible to them. The logic is that as people’s traditional varieties get replaced by newer ones from research labs – seeds that are supposed to provide higher yields to feed a growing population – the old ones have to be put away as “raw material” for future plant breeding. This system forgets that farmers are the world’s original, and ongoing, plant breeders.

In addition, the system operates under the assumption that once the farmers’ seeds enter a storage facility, they belong to someone else and negotiating intellectual property and other rights over them is the business of governments and the seed industry itself. The Consultative Group on International Agricultural Research (CGIAR), which runs about 15 global genebanks for the world’s most widely used staple food crops, has even set up a legal arrangement of “trusteeship” that it exercises over the treasure chest of farmers’ seeds that it holds “on behalf of” the international community, under the auspices of the FAO. Yet they never asked the farmers whom they took the seeds from in the first place if this was okay and they left farmers totally out of the trusteeship equation.

Nobody really knows for sure if the Vault will be effective in keeping the seeds alive and its security is untested. Just days before the opening of the Vault, Svalbard was at the centre of the biggest earthquake in Norway’s history, even though the facility’s feasibility study assured that “there is no volcanic or significant seismic activity” in the area.

But more troubling than any technical matter is the issue of access, the keys to which are held by few hands. The CGIAR Centres will be the depositors for most of the seeds held in the Vault, giving them almost exclusive control over access. The Vault, then, is not a safe deposit box for just anyone. It is mostly the CGIAR’s private stash. Many developing countries will not have direct access to seeds in the Vault that may have been collected from their country. This might not seem to pose many concerns right now because governments have different backup sources for seeds, but the context would be vastly different under any doomsday scenario where decisions would have to be taken over a critical, unique resource which suddenly only remains in Svalbard. For farmers there is pretty much no possibility for direct access to seeds in the Vault.

But doomsday aside, it is important to ask who really benefits from the ex situ system that the Vault contributes to. The Vault is not immune from the terrible controversies over access to and benefits from the world’s precious agricultural biodiversity. The Norwegian government is ultimately responsible for the Vault and is currently regarded as fair and trustworthy, but there is no guarantee that the country’s policies won’t change… Probably more important, the Norwegian government will not be making decisions autonomously. Decisions will be shared with the Global Crop Diversity Trust, a private entity with strong private and corporate funding.

Svalbard is about putting diversity away, in case of some hypothetic emergency. The real urgency, however, is to let diversity live – in farms, in the hand of farmers, and across people-controlled and community-oriented markets – today.

CC BY-SA, derived from Home sewing is killing fashion by Bo Peterson. The image is a take-off of a famous 1980s anti-copyright infringement campaign which had the slogan Home Taping Is Killing Music. The original graphic from that campaign, a casette-tape-and-crossbones, is also incorporated in the Piratebay logo, on the sail of the the pirate ship.

The 1994 WTO (World Trade Organisation) agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was the first global treaty to establish common norms of private property rights over seeds. The goal is to ensure that companies like Monsanto or Syngenta, which spend money on plant breeding and genetic modification to bring new seeds to market, can make a profit on those seeds by preventing farmers from re-using them – a bit like the way Hollywood or Microsoft try to stop people from copying and sharing films or software. The very notion of “patenting life” is hotly contested and so the WTO agreement is a kind of compromise between governments. It says that countries may exclude both plants and animals (other than micro-organisms) from their patent laws but they must provide some form of intellectual property protection over plant varieties, without specifying how to do that.

Free trade agreements negotiated outside the WTO, especially those initiated by powerful economies in the global North, tend to go much further. They often require countries to (a) patent plants or animals, (b) follow the rules of the Union for the Protection of New Plant Varieties (UPOV) to provide a patent-like system for seeds and/or (c) join the Budapest Treaty on the recognition of deposits of micro-organisms for the purpose of patent protection. These measures give strong monopoly powers to agribusiness companies at the expense of small and indigenous farming communities. For example, UPOV and patenting generally make it illegal for farmers to save, exchange or modify seeds from so-called protected varieties.

A tangle of arguments proliferated around the concepts of “collective intellectual property” and the “just and equitable distribution” of its benefits. The tangle emerged because most of those whose forebears created the genetic wealth that is so greatly desired by the wealthy and their powerful corporations find the concept of (intellectual) property a quite foreign one. Their view is that we are the custodians of nature and its wealth, but it is not our property.

This view is not confined to non-western social systems. In her article, Camila noted that “the foundations of our present scientific development were created under an explicit assumption that knowledge is a common good that is created for the common good.” But she observed that the “exchange [of knowledge] between scientists, which is a basic tool for accelerating the creation of knowledge, is being systematically dismantled,” and with it public science that is “characterised by free access, free creation and working for the common good.”

Opposing these trends the logical next step is to reject intellectual property altogether, she says. Why has this not happened? “Why,” she asks, “do we continue to negotiate, attempting damage control through accommodation, accepting being governed by rules that we know to be extremely damaging? Have we lost hope? Are we afraid? Do we feel cornered?”

Here is the crux of the whole story. We are witness to the collapse of an entire system of values and its replacement, under the pressure of a now globalised privatisation, by another based exclusively on the cash relationship. It is a system already torn by internal weaknesses and contradictions, but within which we ARE cornered.

The text of this post is simplified and adapted from portions of the article When the data isn’t there: Disclosure: the scientific community (and society) at a crossroads by Yurij Castelfranchi, Journal of Science Communications 3 (2), June 2004. Paper abstract | complete paper (PDF).

The competition to be the first to sequence the human genome ended in a draw in February, 2001. Two very different groups of researchers each published a paper announcing the (almost) complete sequencing of the human genome.

The papers published in Nature were written by scientists of the International Human Genome Sequencing Consortium, which was comprised of a group of researchers and institutions, financed by public investors and directed by Francis Collins.

The article printed in Science was written by the scientists of Celera Genomics Corporation, a private company run, at the time, by Craig Venter, a brilliant – and controversial – scientist and businessman.

The February 2001 covers of Nature and Science, both featuring the human genome.

The publication of Celera’s article led to a heated debate regarding the free, unrestricted availability of scientific data, because even though the data collected from the public Genome Project were immediately available in the free public database Genbank, Celera chose to restrict access to the data. The work of Venter and his colleagues had already been accepted by one of the most important international, peer-review journals. But the data required for the verification of the methods and results were not available in the journal – they could only be accessed, under certain terms and conditions, through Celera’s own website.

On the 6th December, 2000, Michael Ashburner, geneticist and former member of Science’s board of reviewing editors, professed to be “outraged and infuriated” with Celera’s decision not to deposit all of its data in Genbank, and with that of Science to publish the paper all the same, and invited his referee colleagues to boycott the American journal. The following day, after a heated debate, the leaders of the public Genome Project voted to end discussions with Science on the rules of disclosure and instead submit their paper to the English journal Nature.

The problem, in Micheal Ashburner’s opinion, was not that a private company had restricted availability of free data, but on the contrary, that, despite its actions, it expected to publish a paper: “I have nothing whatsoever against the idea that Celera sequence the human genome and sell it, but the company also wants the academic kudos that goes with it.”

Donald Kennedy, the Chief Editor of Science, justified the journal’s decision and that of Celera: “The company”, he wrote, “has the right to protect its own investments”. And Science’s decision, he added, was “a one-off deviation from the norm”. The Nobel prize-winner and former director of the National Institutes of Health, Harold Varmus, rebutted, asking if the incident was to become a precedent: “What will Science do next time?”

Less than a year later, the sequencing of the rice genome showed that the Celera case had indeed become a precedent. Yet again, the sequencing process was carried out in different ways by different research teams: the indica sub-species was sequenced by the Beijing and Hangzhou Genome Centres. The latter, which deposited its data in Genbank, is a Chinese research centre financed by the University of Washington. The japonica sub-species was sequenced by the Torrey Mesa Research Insitute (TMRI) which belongs to the multinational Syngenta. Its data was made available to contract researchers, as in the case of the human genome sequence data.

Science magazine April 2002: ‘The Rice Genome’.

Yet again, Science decided to make an exception to the rule of disclosure. And yet again, it was the centre of a passionate debate. Donald Kennedy, who, the year before, had described Science’s decision as a one-off deviation from the norm, now tried to assure scientists that this was an “extremely rare occurrence”. He wrote in an editorial:

When two groups simultaneously published rough drafts of the human genome sequence just over a year ago, the achievement was hailed as the “beginning of a new era of biology.” This issue of Science contains two research articles that herald a similar transformation for the agricultural sciences.

Science’s reasoning was similar to that of the year before. The journal felt obliged to make an exception to the rule, to turn a blind eye and publish the (limited) data which it deemed of great importance for the future of humanity (rice is essential for world health), rather than publish nothing at all.

… The most important element of the debate remains, however, the link between disclosure and scientific publication. If the link is being questioned, then some of the rudiments of science have to be re-examined. Publishing results means communicating, in detail, hypotheses, methods, experimental materials used, data gathered, conclusions made. If a scientific paper does not provide enough information to allow others to repeat the experiment, is it really a scientific paper at all?

The issue at stake could hardly be more momentous: who owns our knowledge about ourselves?

Since the early 1990s it has been clear that research technology could sequence the very large genomes of mouse and human. Nobody underestimated the magnitude of the task. Government agencies in the United States, and the Wellcome Trust, an independent UK biomedical charity, were persuaded to make the necessary investment. Slowly at first, the sequencing of the human genome began.

By 1998, less than 10 per cent of the human genome had been sequenced. With growing investment and mounting confidence the ramp-up in sequencing rate started. In the process two important principles about the endeavour were established.

The human genome project would be truly international. Despite the domination of the USA and UK, groups from Germany, France, Japan, China and other countries were making significant contributions. Moreover, it would be truly public. At a historic meeting in February 1996 in Hamilton, Bermuda, the partners agreed not to patent any of the sequences that they determined, but instead immediately to deposit them in a public database, where they were freely available to all.

The Bermuda Agreement had three essential elements. First, that something as fundamental to our nature as the sequencing of our own genome should not be the property of any individual, group or government, however enlightened, but should belong freely to all humankind. Such knowledge, Bermuda ruled, should as a matter of principle be freely available to all: to simply hold in one’s hand, to ponder, to study and analyse or, within certain ethical limits, to exploit.

The second essential feature was more pragmatic. Everyone at Bermuda was aware that determining the sequence of genomes, whether human or not, is but the first step to understanding the complete meaning of the message they contain. This process could take decades of work. Progress in it will be much faster if the problem of interpreting sequences attracts the brightest interested minds, and most skilled and experienced geneticists, available everywhere. This possibility would be seriously impeded if access to a sequence is controlled in any way, either by legal or commercial constraints.

The standard argument for patents of inventions is that they encourage investment and therefore accelerate the development of the advances they embody. Here, the opposite holds true. The swift advancement of knowledge involves unimpeded scientific rivalry and collaboration.

But in May 1998 Craig Venter announced he was forming a new company to sequence the human genome in three years and make money by selling access to the sequence to business, in total breach of Bermuda. This was not pure bravado. It coincided with a technological breakthrough in sequencing technology, achieved by Venter’s backers, PE Biosystems Inc. They wagered that their new machines could be coupled with novel computational methods to make the task much easier, cheaper and faster.

Reactions to Venter’s announcement varied from outrage to disbelief. Some said that it could not be done technically; others said that even if it could it was immoral, unethical and offended all of the laws of human nature other than those of capitalism. Those responsible for the public sequencing project had three choices: to lay down and let Venter do it; to collaborate with Venter; or to compete. They competed. The competition did, of course, have a bright side – despite their public statements to the contrary, the public sequencing group accelerated their progress many-fold in response to Celera. It was an ugly, not friendly, competition. Both sides took every opportunity to question the integrity of their opponent in public.

… Science allowed itself to be persuaded to publish Celera’s paper with neither public data deposition nor full disclosure of the methods by which the work was done. The fact that Celera is a major financial donor to the AAAS (Science’s charitable owners) had, of course, no influence on this decision.

Most, though not all, reputable scientists regard the Celera paper published in Science as little more that an expensive advertisement, a form of science by press release. One of the defining features of science is that it is public knowledge. Only if scientific knowledge and the methods used to acquire it are freely available, can the cardinal principle of the reproduction and testing of experiments take place. It is a tragedy that a great scientific magazine has seen fit to bow to the will of big business to compromise such a basic principle.

The consequences are only beginning to be felt. When Heather Kowalski of Celera Genomics announced at the end of April that the company had assembled the genetic code of the mouse, it was with a mixture of PR-speak (“the Rosetta stone”) and keep-off-the-grass. The denial of access to non-subscribers means that the scientific credibility of the findings cannot be tested where it matters – in the public realm.

On a ship voyage not long before, he had overheard one passenger discuss some of the ways electricity was being used for such long-distance contacts. It was pretty well known. Joseph Henry was teaching at the College of New Jersey (soon to be renamed Princeton University) by then, and some of his work had been publicized. There also had been similar trials in Europe…

After struggling to make a telegraph of his own work efficiently, Morse almost gave up in frustration. He was certain there had to be an easier way, so he decided to get help from someone who actually knew how these mysterious electrical substances operated and could explain it to him.

Which is how, probably on a spring day in 1838, Joseph Henry found a surprisingly impassioned ex-painter at the door of his Princeton office.

… Henry had often declared that patents were the sort of thing that had held Europe back. He happily explained to Morse how the system worked – the batteries and the electromagnet and the spools of wire. In America, a young and growing country, it was right and proper, Henry believed, for all good citizens to share what they learned.

It took Morse several years – and judicious financial involvement with key members of congress – before he secured enough government funds to actually build a large, working prototype of his telegraph device. In its first week of commercial operation in 1844, connecting Washington with Baltimore, it took in just thirteen and a half cents in paid traffic, but in the next year an expanded line was taking in over a hundred dollars each week, and within a decade Morse was one of the wealthier men in North America.

Did it matter that he had largely stolen the idea for his invention? Telegraphs were already operating in England and Germany, and in America other inventors were close behind them. Someone else would no doubt have helped jump-start the American system if Morse hadn’t done it.

Although divine justice didn’t keep Morse from earthly riches, it did strike in another way. Joseph Henry had a satisfying life, at ease with his students and respected by his peers. Morse, however, having engaged in so much subterfuge, spent much of the next three decades stuck in litigation trying to defend the patents he’d railroaded through in his name.

– From ‘Electric Universe: how electricity switched on the modern world’ by David Bodanis, p21-24

There is a myth that patents are taken out by poor and lonely inventors coming up with a stroke of genius. If such a poor inventor did exist, he or she could never afford to even apply for a patent. Today patents are manufactured in meetings, where engineers discuss what they did last week, and a patent monopoly attorney takes notes and files patent monopolies on the most trivial things. If somebody had invented the chair today, next week you would see dozens of filings for a patent monopoly on placing two chairs side by side or opposite each other. This is the actual level of monopolization going on, just in case the filing corporation can use the patent to sue or countersue somebody later.

It has become more profitable to create patent monopolies rather than actual products and services, and then sue (or threaten to sue) those who actually create something… In the pharmaceutical industry, the market deadweight from the patent monopolies is in the ballpark of 50% of the industry’s total revenue. By getting rid of these patents and opening up research and manufacturing, we could double the money spent on actual research, while allowing people in the third world to use their own raw materials, plants, and knowledge to make medicine for their populations.

The text of this post is exerpted from the chapter ‘Genius’ in the book Newton: the making of genius by Patricia Fara. Some parts have been paraphrased.

Words written in the 1700s often appear familiar, but have changed their meanings. Genius is now the label for a singular individual who is far removed from the central norm of society. But in Isaac Newton’s lifetime, it referred far more often to a specific characteristic that belonged to a person, nation or place. The man of genius was blessed by God with an exceptionally large amount of a particular ability. Writers referring to Newton’s genius commonly had in mind something closer to what we would call a special talent or gift, which could be for practical as well as mental tasks. Newton was celebrated for having an unusually strong genius for mathematics, but other people also possessed a genius that allowed them to excel in other fields – Pope in poetry, Kneller in painting, or a woman in embroidery.

The words ‘science’ and ‘art’ also meant something very different from now. ‘Science’ was associated with book learning and theoretical knowledge, and could cover any field of scholarship, including what we would call the arts. ‘Art’ was associated with applied knowledge and practical skills, and often carried slightly derogatory implications of contrivance, unnatural artifice or manual labour.

Newton’s ‘Philosophiæ Naturalis Principia Mathematica’ published in 1687; cover (left) and a page from the 1726 edition (right). In English the title would be ‘Mathematical Principles of Natural Philosophy’. Source images: Principia title and Principia Page 1726. Both images are in the public domain.

Traditionally the accolade of genius had been most commonly reserved for poets, a usage stemming from classical beliefs about divine inspiration. Before Newton joined this heavenly throng, the only men universally acclaimed as geniuses were Homer and Shakespeare. A huge shift took place in the mid-1500s when some Italian Rennaissance painters came to be viewed as geniuses, even though they worked with their hands as well as with their minds. Another huge shift took place in the late 1700s when scientific practitioners were becoming respected for their expertise, and the whole notion of genius was being reappraised. Newton’s followers placed him in a new category: scientific geniuses.

But the concept of a scientific genius seemed contradictory. As one writer put it in 1825:

Surely, whatever is invented cannot be science. Invention belongs to art, and to the creation of genius. Science analyses facts and develops principles. It discovers, but it does not invent.

Confusingly, like ‘science’ and ‘genius’, the word ‘invention’ was also rapidly changing in the second half of the eighteenth century. For literary philosophers invention was not about James Watt’s steam engines or Richard Arkwright’s spinning machines, but concerned plots, ideas and metaphors. Mechanical inventiveness had been connected to its latin meaning, ‘discovery’, so that inventors were regarded as finding and revealing God’s designs, rather than being praised for their originality.

The goals of wealth and truth were still divorced. Far from enjoying the high status they came to command during the Victorian era, innovative practical men were looked down on as mercenary craftsmen or opportunists. As late as 1834, a new statue of James Watt showed him in the traditional pose of a philosopher, seated and wearing academic robes. The inscription commemorated him not as a practical inventor, but as an eminent man of science who exercised his ‘original genius’ in ‘philosophic research’

Image: A statue by Chantrey of James Watt, taken at St Paul’s Cathedral. Photo by Wikimedia user Astrochemist, public domain, click through for original.

Just as men of science wanted to distinguish themselves from mercenary inventors, so too, many people felt that a true literary genius should not stoop to request payment. Yet it was precisely that originality of genius that writers were using to claim that they had created their work and should be paid for it. From the 1770s to the 1840s, bitter debates about authors’ rights and copyright protection ran in tandem with prosecutions over mechanical inventions and industrial piracy. Both sets of debates revolved around definitions of genius and creativity. As writers and inventors gained more control over their work, originality – the criterion of genius – also became a guarantee of ownership.

According to Martha Johnson of the Dene Cultural Institute in Canada, Traditional Ecological Knowledge can be defined as: “a body of knowledge built by a group of people through generations living in close contact with nature. It includes a system of classification, a set of empirical observations about the local environment, and a system of self-management that governs resource use.”

Following this definition, it would be incorrect to assume that the word ‘traditional’ necessarily implies ‘outdated’. Indeed, the term ‘traditional innovation’ should not be regarded as an oxymoron since, as noted by the Canadian indigenous peoples organisation, the Four Directions Council:

“what is ‘traditional’ about traditional knowledge is not its antiquity, but the way it is acquired and used. In other words, the social process of learning and sharing knowledge, which is unique to each indigenous culture, lies at the very heart of its ‘traditionality’. Much of this knowledge is actually quite new, but it has a social meaning, and legal character, entirely unlike the knowledge indigenous people acquire from settlers and industrialised societies.”

The production and use of landraces (indigenous varieties evolved through both natural and human selection) are essential to Third World farmers. These are termed ‘primitive’ cultivars, whereas those varieties created by modern plant breeders in international research centres or by transnational corporations are called ‘advanced’ or ‘elite’. Trevor Williams, the former Executive Secretary of the International Board for Plant Genetic Resources, has argued that it is not the original material that produces cash returns, and at a 1983 forum on plant breeding, stated that raw germ plasm only becomes valuable after considerable investment of time and money. According to this calculation, peasants’ time is considered valueless and available for free. Once again, all prior processes of creation are being denied and devalued by defining them as nature. Thus, plant breeding by farmers is not breeding; real breeding is seen to begin when this ‘primitive germ plasm’ is mixed or crossed with inbred lines in international labs by international scientists.

But the landraces that farmers have developed are not genetically chaotic. Nor do they lack innovation. They consist of improved and selected material, embodying the experience, inventiveness and hard work of farmers past and present; the evolutionary material processes they have undergone serve ecological and social needs.

As Pat Mooney has argued, “The perception that intellectual property is only recognizable when produced in laboratories by men in lab coats is fundamentally a racist view of scientific development.”

The denial of prior rights and creativity is essential for owning life. A brief book prepared by the biotechnology industry states: “Patent laws would in effect have drawn an imaginary line around your processes and products. If anyone steps over that line to use, make or sell your inventions or even if someone steps over that line in using, making or selling his own products, you could sue for patent protection.”

Jack Doyle has appropriately remarked that patents are less concerned with innovation than with territory, and can act as instruments of territorial takeover by claiming exclusive access to creativity and innovation, thereby monopolizing rights to ownership. The farmers, who are the guardians of the germ plasm, have to be dispossessed to allow the new colonization to happen.

The following is an excerpt from the book ‘Stuffed and Starved’ by Raj Patel, p.141-142.

Farmers, and particularly women farmers, are the first natural scientists; they are the custodians of biodiversity, they experiment, they save seed, they exchange and breed new varieties, with the aim of getting more out of the ground and making the plant resistant to pests, easier to harvest and yielding more to eat, burn, weave and build with than before. Until the late twentieth century, all this happened in most parts of the world without anyone owning any of the knowledge behind this breeding. A key feature of the World Trade Organization, however, was a provision for the enforcement of ‘trade-related intellectual property rights’. These rights allow for one individual or organization to own ideas… and to charge anyone else for using them.

Within India, the demands of intellectual property rights have pitted agriculture, the occupation of India’s poorest, against information technology, the domain of India’s richest… To ensure a revenue stream in the future, they want high-tech knowledge to be protected by law. But the same rules that protect software knowledge at the WTO also govern farming knowledge. The door is open for intellectual property rights to be claimed over virtually any agricultural knowledge. In one widely-cited example, in 1990 a public/private partnership of the W.R. Grace Company and the US Department of Agriculture (USDA) tried to patent the Indian neem tree because they had discovered that neem was an effective pesticide. The trouble was that Indians had known this for centuries. So common was this knowledge… that one Indian MP sneered that ‘[patenting] neem is like patenting cow dung’. Yet it took fifteen years for the patent to be finally revoked. While ultimately unsuccessful in the effort to patent neem, companies domestic and international are using the cover provided by the WTO’s intellectual property provisions to commit what has come to be known as ‘biopiracy’.

… Access to Indian biodiversity, and to its DNA in particular, means that [private companies have] an unfathomable pool of information to mine, analyse, sequester, and resell… This is how the Indian IT industry and researchers (mainly men working over keyboards), with their deep need for intellectual property rights in the US, succeed in selling agricultural knowledge (mainly generated by women, working over centuries) down the river.

Image: “Christoper Columbus arrives in America”, 1893. The image is in the Public Domain, and more info can be found at Wikimedia.

An excerpt from “Protect or Plunder? Understanding Intellectual Property Rights” by Vandana Shiva:

‘Litterae patents’ were first issued in Europe in the sixth century. Charters and letters were given by European monarchs for the discovery and conquest of foreign lands. They were used for colonization and for establishing import monopolies. This is evident in the charter granted to Christopher Columbus… to assert rights to all ‘islands and mainlands’ before their discovery. Given that Columbus’s voyage was supposed to have been to India, it is interesting to reflect on the fact that what Columbus carried as a piece of parchment was the potential right to own India. It was instead used to conquer and own the lands of America’s indigenous people who have been called Indians ever since as a reminder of Columbus’s mistaken ‘discovery’.